Goddard v The Queen P3/2000 [2000] HCATrans 648 (27 October 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P3 of 2000

B e t w e e n -

ADAM TROY GODDARD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 10.46 AM

Copyright in the High Court of Australia

MR R.E. LINDSAY: May it please your Honours, I appear with my learned friend, MR B.S. HANBURY, for the applicant. (instructed by Beau Hanbury)

MR R.E. COCK, QC: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (WA))

GLEESON CJ: Yes, Mr Lindsay, go ahead.

MR LINDSAY: Thank you, your Honour. There are two short matters perhaps I should mention at the outset. The first is apply to extend time within which to seek leave to appeal.

GLEESON CJ: Is that opposed, Mr Cock?

MR COCK: We are not prejudiced by the application, your Honour.

GLEESON CJ: Yes, you have that.

MR LINDSAY: Thank you, your Honour. The second point was to amend the original application to accord with the draft grounds of appeal. Your Honour, the case raises an issue of general importance to the administration of criminal law, namely, the method of resolution of an established gross disparity between sentences imposed on co-offenders. The applicant received a sentence of seven years with eligibility for parole. The co-defendant received one just half that, three and a half years, with eligibility for parole, again.

One point which is not mentioned in the judgment, which may also be of significance is that because of the rules relating to non-parole periods the sentence in relation to the applicant non-parole period was 32 months, whereas in the case of Reeves, the co-defendant, it would be 14 months, so, in relation to the non-parole period it was more than double for the applicant than it was for the co-offender Reeves.

So far as the respective merits of the two offenders are concerned, essentially the Court of Appeal found that there was no real distinction to be made when all factors were taken into account and that it was found, indeed, by the majority - accepted by the majority - that there was a manifest disparity in relation to the sentences passed in relation to the two. But, in effect, the conclusion was that, the issue of disparity aside, the sentence upon the applicant of seven years was within a sound sentencing discretion. So, the issue here, which perhaps goes a step further than Lowe, is how far it is justified to reduce a sentence where it might be aside from the disparity issue within - - -

GLEESON CJ: But it is entirely a discretionary exercise, is it not?

MR LINDSAY: It is a discretionary exercise, to a degree, but as Justice Mason, as he then was, in Lowe said, where it may be a case that the applicant's sentence will be reduced to a level where it might otherwise be regarded as inappropriate, is still justified to do that if there has been gross disparity.

GLEESON CJ: Yes, I know, but you cannot have a situation where, in practice, what is happening is that the second judge is re-sentencing the first offender.

MR LINDSAY: Yes, but, in fact, in that respect, it was similar to Lowe in that in that case the mistake was in relation to the sentencing of the second offender as indeed it was here. If you take the decision in relation to - - -

GLEESON CJ: But unless you preserve the discretion of the Court of Criminal Appeal when it is confronted with the objective fact of disparity you have a practical result that it is the second judge who, for all intents and purposes, is re-sentencing the first offender.

MR LINDSAY: Yes, your Honour. That is true, he is re-sentencing. But, what appears to have been the point of distinction between what Justice Kennedy found and what the majority found in this case was that Justice Kennedy adopted what Justice Mason had said in Lowe to the effect that a sentence should be reduced in relation to an applicant, even to the point where it might be regarded as inappropriate, if that was necessary in order to achieve parity.

That was really the point of distinction between the majority in the position which Justice Murray and Justice Pidgeon take and what Justice Kennedy takes. He says, as I understand it, that in those circumstances it is not so much a question of discretion but that the appeal court is bound in those circumstances to reduce the sentence of the applicant once gross disparity giving rise to a justifiable sense of grievance is found.

There was no issue in this case, in my submission, on the facts of the case or, indeed, on the findings of the majority in the Court of Criminal Appeal that there was gross disparity here, that it could give rise to a justifiable sense of grievance, but what held them back was that they considered that to reduce the sentence of Goddard would be to reduce it to a level which might be regarded as inappropriate. That was something Justice Mason said in Lowe could be done. That was something which Justice Kennedy adopted in this case as the mode of reasoning. That was something which the majority, on the other hand, were disinclined to favour. So, that is the issue, your Honour, in my respectful submission, in this particular case.

As stated by the Court of Appeal there does not appear to be a uniform practice in other States or, indeed, in overseas jurisdictions into how the situation is dealt with where you have one applicant who in order to achieve parity you need to reduce the sentence to a level which might, disparity aside, be regarded as inappropriate. Essentially, your Honour, those are my submissions.

GLEESON CJ: We do not need to hear you, Mr Cock.

The Court is of the view that on the particular facts and circumstances of this case there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused.

AT 10.54 AM THE MATTER WAS CONCLUDED